To Charge or Not to Charge? How Prosecutors Drive Mass Incarceration

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The large number of Americans behind bars may be in part a consequence of prosecutors’ determination to level charges for offenses that in other circumstances might not have merited punishment, according to a forthcoming paper in the Southern California Law Review.

The lack of significant national or legal guidelines about when to charge a case, and what charges to file, has left individual prosecutors with the discretionary power to make decisions “behind closed doors” that have life-changing results for individuals even before they have their day in court. the paper argued.

More than 94 percent of criminal cases in the U.S. are now resolved by plea bargaining.

“While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability,” wrote the authors of the study, Shima Baradaran Baughman of the University of Utah – S.J. Quinney College of Law; and Megan S. Wright of Pennsylvania State University.

“Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings.”

The article analyzed the role of prosecutorial discretion in mass incarceration in the U.S. through an experiment in which 541 prosecutors were asked to decide how to handle a hypothetical criminal case.

Participants were given a fictional police report concerning a slightly intoxicated man in a subway station, who reportedly had just broken up with his girlfriend, and was found “yelling obscenities, asking people for money, and brandishing a knife.”

The prosecutors given the case had to respond with recommended charges ranging from none to aggravated assault, which is a felony charge. They were allowed to press multiple charges if they thought it was appropriate, and also to indicate whether or not they would include confinement or monetary fines.

Purposefully broad in what it allowed, the study was designed to explore how widely prosecutorial discretion could vary in terms of sentence length and severity, and how it affects mass incarceration.

Sixty-five percent of the prosecutors who responded to the study were men; 90 percent were white, and 4 percent were Black.  The ages ranged from 26 to 77.

Some 84 percent of the respondents chose to file misdemeanor charges, while 16 percent filed felony charges. While this shows that a majority of the prosecutors would choose to charge the defendant with a less severe sentence, 97 percent of the respondents still made a decision to charge the defendant, the researchers noted.

Only 3 percent chose not to file charges.

These findings contradicted the results of previous studies that found the rate of declination—the decision not to prosecute—ranged between 25 percent and 50 percent.

While the majority of respondents chose to file less severe punishments, most filed multiple charges against the defendant. The mean number of charges, excluding those choosing not to bring charges, was 3.26.

Some even charged the defendant with up to 11 charges.

Additionally, 41 percent of respondents recommended some sort of monetary penalty, with the mean amount excluding those who didn’t recommend any monetary fine at $640 and the most common recommended fine at $500.

The authors of the report included that $500 is more than what’s contained in the average American’s savings account, noting that some recommended fines as high as $5,000.

Only about 27 percent of respondents recommended some sort of confinement, but that confinement ranged from two to 720 days. The most popular time recommended was 30 days.

The findings from each section of the study: severity of charges, amount of charges, monetary punishments, and confinement reflect a serious lack of consistency across decisions made by prosecutors, said the researchers.

The researcher noted guidelines on sentencing and charging decisions issued by professional bodies like the American Bar Association, and the National District Attorneys Association, and legal authorities like the U.S. Supreme Court were too vague to be of specific help.

The guidelines stressed the need to “seek justice” and use “sound discretion.”

“Nowhere in the standards (are prosecutors asked) to consider no charge at all,” the authors of the study noted.  “Particularly when considering an individual without a criminal record, or potentially placing a higher bar in this circumstance.”

Moreover, the researchers added, “Nowhere do the standards indicate the careful consideration a prosecutor should make due to the impact of even a short prison stint on an individual’s life.”

The study said that prosecutors “saw it as their duty to charge a crime when they witnessed one,” even though doing so for a crime that could avoid jail time could lead to less people in jails and less people suffering from the ill effects of the criminal justice system for a crime that could have been better treated by rehabilitative programs.

“Neither standard ever points out that potentially declining to charge may help reduce unnecessary cases, costs, pretrial detention or collateral consequences that cause mass incarceration,” the study said.

While recent studies indicate that prosecutorial sentences decreased by 21.3 percent from 2006 to 2018, the number of police arrests has dropped even more, suggesting that prosecutors are proportionately filing more charges per arrest in the year 2018 than in previous years.

The authors concluded that mass incarceration in the U.S. was in large part of a reflection of prosecutors’ determination to level charges for offenses that in other circumstances might not have merited punishment.

The authors said the solution was not to remove prosecutorial discretion entirely, but to enact clearer  guidelines at national and local levels on decisions to charge, that include considering the impact their decisions could have on the lives of individuals and their families.

The article can be downloaded  here.

 Emily Riley is a TCR justice news reporting intern.

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